Merger Controls First Edition - J Sagar Associates

Turkey
Gönenç Gürkaynak & K. Korhan Yıldırım
ELIG Attorneys at Law
Overview of merger control activity during the last 12 months
The Turkish merger control regime is primarily regulated by the Law on Protection of Competition No. 4054 (the Competition
Law), dated 13 December 1994, and Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the
Competition Board (the new Communiqué), published on 7 October 2010. The new Communiqué entered into force as of 1
January 2011. Prior to the enactment of the new Communiqué, Communiqué No.1997/1 on Mergers and Acquisitions Requiring
the Approval of the Competition Board (the old Communiqué) was the primary instrument in assessing merger cases in Turkey.
In 2010, when the old Communiqué was applied over merger cases in Turkey, the Competition Authority reviewed more than
200 merger cases (which includes mergers, acquisitions and joint ventures).
The number of operations of concentration notified to the Competition Authority in 2010 (210) was significantly higher than
in 2009 (144). The increase can be explained by the effect of the country’s recovery from the global economic crisis and by
the application of the alternative turnover/market share thresholds under the old Communiqué. The new Communiqué has
now abolished the market share threshold and replaced it by alternative turnover thresholds.
The Competition Board granted unconditional clearances for the vast majority of transactions notified to it in 2010. Very few
transactions fell to Phase II reviews (i.e. where the Competition Board takes the merger case/transaction to a second stage,
which then becomes a fully-fledged investigation), and certain other transactions received conditional clearances.
The Competition Board reviewed a total of 210 merger cases in 2010 among which included 160 cases that received unconditional
clearance, 28 cases that were found to be not notifiable (i.e. a decision that the notified concentration does not exceed the
applicable jurisdictional thresholds), and 17 cases that fell outside of the merger control regime (i.e. a decision that the notified
transaction falls outside of the scope of applicability of merger control rules for not bringing about a change of control). 202 of
the 210 cases were about acquisitions whereas 5 of the remaining 8 were about joint ventures and 3 were about mergers. In one
transaction, the parties have dropped the deal on a global basis because the transaction could have been prohibited in many
jurisdictions for competition concerns and withdrawn their notification in Turkey.
After entry into force of the new Communiqué as of 1 January 2011, the number of merger cases in Turkey has not been
statistically compiled by the Turkish Competition Authority for the year 2011 as of yet.
New developments in jurisdictional assessment or procedure
The most important change in the Turkish merger control regime was undoubtedly the enactment of the new Communiqué.
The Competition Authority also issued guidelines to supplement and provide guidance on the enforcement of Turkish merger
control rules. One of the guidelines is on market definition, which is closely modelled after the Commission Notice on the
Definition of Relevant Market for the Purposes of Community Competition Law (97/C 372/03). The Competition Board has
also very recently released another comprehensive guideline on Undertakings Concerned, Turnover and Ancillary Restraints
in Mergers and Acquisitions (Merger Guidelines), published on 27 June 2011. Finally, the Competition Board has released
another Guideline on Remedies Acceptable to the Competition Authority in Mergers and Acquisitions, just one day prior to
the time of writing (17 August 2011).
With the introduction of the new Communiqué, the Competition Board was expected to shift its focus from merger control
cases to concentrate more on the fight against cartels and cases of abuses of dominance. Raising the merger control thresholds
and seeking the existence of an affected market for notifiability had been considered as solid measures to decrease the number
of merger notifications. They were expected to result in merger notifications in significantly lower numbers. However, the
introduction of the new guideline on Undertakings Concerned, Turnover and Ancillary Restrictions in Mergers and Acquisitions
may well reverse this trend as the guideline finds the existence of one or more overlaps at the global level sufficient to trigger
a notification requirement, provided that one of the transaction parties has activities in Turkey in at least one of such overlap
areas. While the Competition Board’s initial purpose was to deal with fewer merger control notifications by raising the
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